Michael McDonald, et al v. Marico Flake, et al

Filing

OPINION and JUDGMENT filed: it is Ordered that the judgment of the district court denying Officer Flake's claim of qualified immunity is AFFIRMED, the City of Memphis's appeal is DISMISSED for lack of jurisdiction, and the plaintiffs' motion for sanctions is GRANTED, decision for publication. Alice M. Batchelder (AUTHORING); John M. Rogers, and Deborah L. Cook, Circuit Judges. [14-6258, 14-6370]

Case: 14-6258

Document: 50-3

Filed: 02/29/2016

Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0052p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

MICHAEL MCDONALD; QUINTON LYTLE,
Plaintiffs-Appellees,
v.
MARICO FLAKE (14-6258); CITY OF MEMPHIS (146370),
Defendants-Appellants.

┐
│
│
│
│
>
│
│
│
│
┘

Nos. 14-6258/6370

Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 2:12-cv-02511—Sheryl H. Lipman, District Judge.
Decided and Filed: February 29, 2016
Before: BATCHELDER, ROGERS, and COOK, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Mary Elizabeth McKinney, Deborah Godwin, GODWIN, MORRIS, LAURENZI
& BLOOMFIELD, P.C., Memphis, Tennessee, for Appellant in 14-6258. Henry L. Klein,
Richard J. Myers, APPERSON CRUMP PLC, Memphis, Tennessee, for Appellant in 14-6370.
Robert L. J. Spence, Jr., Bryan M. Meredith, THE SPENCE LAW FIRM, Memphis, Tennessee,
for Appellees.
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. In this interlocutory appeal from the denial
of summary judgment, we are presented with three separate but related issues. In the first, a

1

Case: 14-6258
Nos. 14-6258/6370

Document: 50-3

Filed: 02/29/2016

Page: 2

McDonald, et al. v. Flake, et al.

Page 2

defendant police officer, Marico Flake, argues that the plaintiffs’ evidence did not create a
genuine dispute of material fact so as to overcome his motion for summary judgment based on
qualified immunity. On this issue, we have appellate jurisdiction and AFFIRM.
In the second, the defendant City of Memphis, Tennessee, argues that the plaintiffs’
evidence did not create a genuine dispute of material fact to overcome summary judgment on
charges of municipal liability, and pursues this interlocutory appeal under a theory of pendent
appellate jurisdiction. On this issue, we lack jurisdiction and necessarily DISMISS.
In the third issue, the plaintiff-appellees, Michael McDonald and Quinton Lytle, seek
sanctions against the defendant-appellants, in the form of attorney’s fees they have incurred in
defending this appeal, on the basis that this appeal is knowingly frivolous and taken in bad faith.
On this issue, considering the defendants’ disregard for the governing law and the particular
circumstances here, we agree with the plaintiffs and GRANT the motion for sanctions.
I.
This interlocutory appeal arises from the district court’s denial of the defendants’ motions
for summary judgment in a civil lawsuit, brought under 42 U.S.C. § 1983 and various state laws,
in which the plaintiffs claim excessive force against a certain police officer and municipal
liability against his employer. The plaintiffs, Michael McDonald and Quinton Lytle, are both
adult African-American males. The named defendants are the City of Memphis, Police Officer
Marico Flake (an African-American male), and up to five other “John Doe” police officers.
During the two years of discovery, the parties entered substantial evidence into the
record, including deposition transcripts, affidavits, and documentary evidence. The district court
relied on and cited this evidence in its memorandum opinion (R. 114) and we rely on that
determination of facts for our purposes here, both in summarizing the case and in our analysis.
A.
At about 3:00 a.m. on July 4, 2011, McDonald, Lytle, and four adult female friends, at
least two of whom were Caucasian, were walking past the Memphis Police Department’s

Case: 14-6258
Nos. 14-6258/6370

Document: 50-3

Filed: 02/29/2016

McDonald, et al. v. Flake, et al.

Page: 3
Page 3

Entertainment District Unit (EDU) precinct. They were coming from the nearby Entertainment
District, where they had spent the evening socializing and drinking alcoholic beverages.
Meanwhile, several off-duty police officers, including defendant Officer Flake, had
congregated in the EDU precinct parking lot to socialize. This included at least some officers
who were drinking alcohol, both beer and harder alcohol. Such alcohol consumption by off-duty
officers at the EDU precinct, commonly dubbed “Choir Practice” by its participants, was not
only commonplace at the EDU precinct, but had been occurring for decades at precincts
throughout the City.
When the plaintiffs stopped in front of the EDU precinct, Officer Flake approached them
and, in telling them to move along, referred to their female Caucasian companions as “snow
bunnies.” No one in this case disputes that this is commonly understood to be a racial slur.
McDonald explained that because he smelled alcohol on Officer Flake’s breath, because Officer
Flake had not identified himself as a police officer, and mostly because of the inflammatory
“snow bunnies” slur, McDonald responded: “Who the fuck are you?” But the plaintiffs’ group
nonetheless walked away, crossing the street, whereupon Officer Flake yelled after them, “I’m
going to show y’all who I am,” and violently attacked McDonald. Lytle turned around to see
Officer Flake kneeing McDonald in the back and another officer tackling McDonald. Coming to
McDonald’s aid, Lytle tried to pull Officer Flake off McDonald but other officers joined in
and—while shouting “Stop resisting arrest!”—punched, kicked, and struck the plaintiffs with
batons or flashlights, causing injuries that left each plaintiff with over $7,000 in medical bills.
Officer Flake denied any wrongdoing and offered a different, and irreconcilable, account
of these events, in which he was faultless and victimized by the plaintiffs’ misconduct. But all
parties agree that the officers eventually subdued plaintiffs McDonald and Lytle, placed them
into physical custody, and transported them both to a hospital emergency room for treatment of
their injuries. When the hospital discharged them, the police booked both into custody at the
Shelby County Criminal Justice Center and charged them with resisting official detention, public
intoxication, and disorderly conduct. But McDonald and Lytle spent less than a day in custody
before being released and the State later dismissed all charges against them.

Case: 14-6258
Nos. 14-6258/6370

Document: 50-3

Filed: 02/29/2016

McDonald, et al. v. Flake, et al.

Page: 4
Page 4

B.
McDonald and Lytle filed an administrative complaint with the Memphis Police
Department’s Inspectional Services Bureau, which found that the officers had used excessive
force and violated departmental personal conduct policies. The officers appealed the resulting
suspensions but the record does not report the outcome of that appeal.
McDonald and Lytle also sued both Officer Flake and the City of Memphis in federal
court, claiming arrest without probable cause, excessive force, and municipal liability. Officer
Flake moved for summary judgment on grounds of qualified immunity, but the district court
denied the motion upon finding genuine disputes of material fact, such as who initiated the
physical violence and whether Officer Flake’s use of force was objectively reasonable given the
accusations that he had been drinking, provoked the situation with a racial slur, failed to identify
himself as a police officer, and knew that the many other nearby, alcohol-impaired officers
would engage violently. The City moved for summary judgment on the municipal liability
claim, but the district court denied that motion upon finding genuine disputes of material fact,
such as whether the City was indifferent to officers’ alcohol consumption at the precinct given
testimony that the practice was “widespread” for the past 30 years and not a single officer had
ever been disciplined for it.
C.
The plaintiffs filed suit on June 27, 2012, and the parties engaged in discovery and
motion practice for over two years. On June 25, 2014, the court set trial to begin on October 20,
2014. On August 8, 2014, Officer Flake and the City moved separately for summary judgment.
On September 26, the City moved to continue the trial to a later date. At a motion hearing on
October 2, the court orally denied the motion to continue, alerted the parties that it would be
denying the motions for summary judgment in a forthcoming order, and reiterated that trial
would begin on October 20, with a pretrial conference on October 14.
The district court filed the order denying summary judgment on October 7, 2014. Officer
Flake filed a notice of interlocutory appeal on October 10, 2014, and later that same day, the
plaintiffs responded with a “Motion to Certify Defendant Marico Flake’s Interlocutory Appeal as

Case: 14-6258
Nos. 14-6258/6370

Document: 50-3

Filed: 02/29/2016

McDonald, et al. v. Flake, et al.

Frivolous and Proceed to Trial, and for Expedited Briefing Schedule.”

Page: 5
Page 5

R. 126.

Relying

primarily on Yates v. City of Cleveland, 941 F.2d 444, 448-49 (6th Cir. 1991), the plaintiffs
argued that because the district court based its decision on disputed facts, this court would lack
appellate jurisdiction, and that this is a “[p]roceeding[] masquerading as [a] Forsyth appeal[] but
in fact not presenting genuine claims of immunity,” id. at 448 (quoting Apostol v. Gallion, 870
F.2d 1335, 1339 (7th Cir. 1989)), making the appeal frivolous and brought solely to delay the
trial, which was still scheduled to begin on October 20 (just ten days later). On October 13,
2014, the City filed a notice of interlocutory appeal, purporting to “join” Officer Flake’s appeal,
R. 128, and on that same day these two defendants filed a “Joint Motion for Stay Pending
Appeal,” R. 129. Also that same day, the plaintiffs filed a response, urging the court to deny the
stay and to “certify the defendants’ interlocutory appeals as frivolous,” R. 130. Further argument
ensued in the form of multiple reciprocal responses and replies.
Following the hearing on October 14, 2014, the district court granted the defendants’
motion to stay and correspondingly denied the plaintiffs’ motion to declare the appeals frivolous.
R. 144 (Oct. 16, 2014). In its order, the court reiterated that its denial of summary judgment
rested on the genuine disputes of material fact, but conceded that Officer Flake could raise a
legal issue for which this court would have interlocutory appellate jurisdiction, emphasizing:
[I]t is well recognized that such appeals are only appropriate where they are based
on a question of law, not a factual dispute. Mitchell [v. Forsyth, 472 U.S. 511,
530 (1985)]. Therefore, as the case law recognizes, on such an appeal the
defendant must accept the plaintiffs’ version of the facts. Latits v. Phillips, 573
F. App’x 562, 564-65 (6th Cir. 2014); Quigley v. Tuong Vihn Thai, 707 F.3d 675
(6th Cir. 2013).
The contents of the [defendants’] written filings and arguments before the
[c]ourt in its October 14, 2014, hearing rehashed many of [the] disputes Officer
Flake has with Plaintiffs’ version of the facts. However, Officer Flake advances
at least one argument addressing a purely legal issue–that is whether his use of
force was objectively reasonable as a matter of law. The [c]ourt agrees that such
an argument is immediately appealable, so long as defendant accepts as true for
the purposes of the motion Plaintiff’s version of the facts. Although Officer
Flake’s filings seemingly stop short of accepting the Plaintiffs’ version of the
facts, it appears that this is an issue for the Sixth Circuit to address, not this
district court.
R. 144 at 2-3 (emphasis in original).

Case: 14-6258
Nos. 14-6258/6370

Document: 50-3

Filed: 02/29/2016

McDonald, et al. v. Flake, et al.

Page: 6
Page 6

Consequently, despite some clear reluctance, 1 the court refused to declare the appeals
frivolous and instead allowed them to proceed for interlocutory review. As noted at the outset,
the three issues before us in this appeal are Officer Flake’s argument that he is entitled to
qualified immunity on the plaintiffs’ claims of excessive force and arrest without probable cause,
the City’s argument that it is entitled to summary judgment on the plaintiffs’ claim of municipal
liability, and the plaintiffs’ claim that these appeals are frivolous and thus warranting sanctions.
We address each in turn.
II.
Officer Flake argues that he is entitled to qualified immunity. The plaintiffs disagree and
also insist that we lack jurisdiction to decide this appeal because not only did the district court
base its denial of qualified immunity on its determination that genuine disputes of material fact
required decision by a jury, but because Officer Flake rests his appeal solely on his disagreement
with that determination of the facts.

Thus we must first establish that we have appellate

jurisdiction; then we must determine the extent or limitations of that jurisdiction; and only then
may we exercise that jurisdiction to decide the merits of the argument that is properly before us.
A.
Qualified immunity shields government officials in the performance of discretionary
functions from standing trial for civil liability unless their actions violate clearly established
rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A plaintiff who brings a § 1983 action
against such an official bears the burden of overcoming the qualified immunity defense. Quigley
v. Tuong Vinh Thai, 707 F.3d 675, 681 (6th Cir. 2013). At the summary judgment stage, the
plaintiff must show that (1) the defendant violated a constitutional right and (2) that right was
clearly established. Id. at 680. In so doing, the plaintiff must, at a minimum, offer sufficient
evidence to create a “genuine issue of fact,” that is, “evidence on which [a] jury could reasonably
find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 256 (1986).
1

The district court opined that it was “disturbed by Officer Flake’s participation in the case for two years
before filing a motion related to his claim for qualified immunity” and “troubled by the lack of incentive for
defendants to behave otherwise, particularly given the length of time this case has been pending, but . . . there
appears to be no alternative for a district court other than to stay its proceedings pending the appeal.” R.144.

Case: 14-6258
Nos. 14-6258/6370

Document: 50-3

Filed: 02/29/2016

McDonald, et al. v. Flake, et al.

Page: 7
Page 7

Stated another way, if the district court determines that the plaintiff’s evidence would
reasonably support a jury’s finding that the defendant violated a clearly established right, the
court must deny summary judgment. DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 609 (6th Cir.
2015). As the denial of summary judgment is ordinarily not a final decision within the meaning
of 28 U.S.C. § 1291, it is generally not immediately appealable. But the “denial of a claim of
qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’
within the meaning of [] § 1291 notwithstanding the absence of a final judgment.” Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985).
Thus, we may decide an appeal challenging the district court’s legal determination that
the defendant’s actions violated a constitutional right or that the right was clearly established. Id.
We may also decide an appeal challenging a legal aspect of the district court’s factual
determinations, such as whether the district court properly assessed the incontrovertible record
evidence. See Plumhoff v. Rickard, 572 U.S. --, 134 S. Ct. 2012, 2019 (2014); Roberson v.
Torres, 770 F.3d 398, 402 (6th Cir. 2014). And we may decide, as a legal question, an appeal
challenging the district court’s factual determination insofar as the challenge contests that
determination as “blatantly contradicted by the record, so that no reasonable jury could believe
it.” Scott v. Harris, 550 U.S. 372, 380 (2007); Plumhoff, 134 S. Ct. at 2020.
We may not, however, decide an appeal challenging the district court’s determination of
“‘evidence sufficiency,’ i.e., which facts a party may, or may not, be able to prove at trial.”
Johnson v. Jones, 515 U.S. 304, 313 (1995). Because such a challenge is purely fact-based,
lacking any issue of law, it “does not present a legal question in the sense in which the term was
used in Mitchell,” Plumhoff, 134 S. Ct. at 2019, and is therefore not an appealable “final
decision” within the meaning of 28 U.S.C. § 1291.

These types of prohibited fact-based

(“evidence sufficiency”) appeals challenge directly the plaintiff’s allegations (and the district
court’s acceptance) of “what [actually] occurred[] or why an action was taken or omitted,” Ortiz
v. Jordan, 562 U.S. 180, 190 (2011), who did it, Johnson, 515 U.S. at 307, or “nothing more than
whether the evidence could support a [jury’s] finding that particular conduct occurred,” Behrens
v. Pelletier, 516 U.S. 299, 313 (1996). We have also explained that the defendant-appellant may

Case: 14-6258
Nos. 14-6258/6370

Document: 50-3

Filed: 02/29/2016

Page: 8

McDonald, et al. v. Flake, et al.

Page 8

not challenge the inferences the district court draws from those facts, as that too is a prohibited
fact-based appeal. See Romo v. Largen, 723 F.3d 670, 673-74 (6th Cir. 2013).
In the event that legal and factual challenges are confused or entwined, “we must separate
an appealed order’s reviewable determination (that a given set of facts violates clearly
established law) from its unreviewable determination (that an issue of fact is ‘genuine’).”
Roberson, 770 F.3d at 402 (citing Johnson, 515 U.S. at 319) (quotation marks omitted).
Similarly, we can separate an appellant’s reviewable challenges from its unreviewable. DiLuzio,
796 F.3d at 610; Romo, 723 F.3d at 674 & n.2 (6th Cir. 2013) (accepting appellate jurisdiction by
ignoring the “factual disputations” and “ruling on what [wa]s properly before us [while] say[ing]
nothing about what [wa]s jurisdictionally not before us”).

That is, we can “ignore the

defendant’s attempts to dispute the facts and nonetheless resolve the legal issue, obviating the
need to dismiss the entire appeal for lack of jurisdiction.” Estate of Carter v. City of Detroit, 408
F.3d 305, 310 (6th Cir. 2005) (deciding based on the plaintiff’s record facts).
In so doing, because we defer to the district court’s factual assessments, ideally we need
look no further than the district court’s opinion for the facts and inferences cited expressly
therein. DiLuzio, 796 F.3d at 611. That is, we can often merely adopt the district court’s
recitation of facts and inferences. See Johnson, 515 U.S. at 319. And we find it appropriate to
do so here, given Officer Flake’s arguments and the plaintiffs’ counterarguments. Thus, in
deciding this appeal, we adopt the district court’s articulated facts and inferences.
It bears mention, however, that, in adopting or accepting the district court’s factual
determinations for the purpose of deciding this interlocutory appeal, we are not ourselves making
any findings of fact or inferences for purposes of any subsequent proceedings. DiLuzio, 796
F.3d at 611; see also Nelson v. Shuffman, 603 F.3d 439, 448 (8th Cir. 2010) (“Whether [the
plaintiff] is ultimately able to prove the alleged factual bases for his claims is a matter left for the
finder of fact [on remand]—not the appellate court on interlocutory appeal.”).

Case: 14-6258
Nos. 14-6258/6370

Document: 50-3

Filed: 02/29/2016

Page: 9

McDonald, et al. v. Flake, et al.

Page 9

B.
In his brief on appeal, Officer Flake barely even feigns an attempt at accepting the
plaintiffs’ version of the facts (but for one 2) and instead propounds his own version of the facts
and the inferences that he would draw from them.

For example, the district court cited

McDonald’s assertion that he smelled alcohol on Officer Flake’s breath, R. 114 at 2, and drew an
inference that Flake’s consumption of alcohol prior to the confrontation might have affected the
reasonableness of his actions towards the plaintiffs, R. 114 at 13. On appeal, Flake does not
accept either McDonald’s evidence or the district court’s inference, arguing instead:
Officer Flake does dispute that he was personally drinking alcohol, and he
submits that the record in this case supports his position on the issue and not that
of Plaintiffs. Every officer, even those that admitted to consuming alcohol
themselves, testified that Officer Flake does not drink alcohol ever. Not a single
person witnessed Officer Flake consume alcohol. The only evidence Plaintiffs
offered was testimony from McDonald, who was admittedly intoxicated at the
time, that he smelled alcohol on Officer Flake’s breath from five (5) feet away.
Apt. Flake’s Reply Br. at 20. This is exactly the type of factual dispute over which we have no
interlocutory appellate jurisdiction. See, e.g., Ortiz, 562 U.S. at 190; Behrens, 516 U.S. at 313.
And this is typical of both Flake’s and the City’s arguments in their briefs in this appeal.
Rather than dismiss the appeal outright, however, we will instead discard the fact-based
or “evidence sufficiency” portion of the arguments—that is, any challenge to the district court’s
view of the facts or its associated inferences—and exercise the jurisdiction we do have to
reconsider the district court’s legal determinations, based on the plaintiffs’ version of the facts
and the inferences as articulated by the district court. See Estate of Carter, 408 F.3d at 310.

2

The only accusation that Officer Flake purports to concede, or acknowledge, is the accusation about the
“snow bunnies” racial slur, and that he does reluctantly and in order to raise a misleading counter-argument. To wit:
Officer Flake has at all times denied that he used the racial slur ‘snow bunnies’ in reference to the
women accompanying the Plaintiffs that night. However even accepting such an allegation for the
purposes of summary judgment as well as this subsequent appeal, Officer Flake maintains that
such conduct, the use of a racial slur, does not in and of itself constitute a constitution violation.
Apt. Flake’s Br. at 36. But the plaintiffs did not assert and the district court did not even suggest that the racial slur
“in and of itself constitute[s] a constitution violation.” Hence, that argument is irrelevant to the actual analysis.

Case: 14-6258
Nos. 14-6258/6370

Document: 50-3

Filed: 02/29/2016

Page: 10

McDonald, et al. v. Flake, et al.

Page 10

C.
The plaintiffs have asserted three rights (i.e., three constitutional violations) in this case.
First, they had a right to be free from arrest without probable cause. Everson v. Leis, 556 F.3d
484, 500 (6th Cir. 2009). Second, they had a right to be free from “excessive force during an
arrest, investigatory stop, or other ‘seizure’ of [their] person.” Chappell v. City of Cleveland,
585 F.3d 901, 908 (6th Cir. 2009). And, third, they had a right to be free from one officer’s
knowing and willful permission for or encouragement of other officers to inflict excessive force
upon them. Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997). Furthermore, all three of these
rights were clearly established as of July 4, 2011, the night of the events at issue here.
In finding a “genuine issue of material fact” (i.e., deciding that the plaintiffs had
produced sufficient “evidence on which [a] jury could reasonably find for the[m],” see Anderson,
477 U.S. at 252), the district court identified certain facts and drew certain inferences.
According to that version of the facts, at approximately 3:00 a.m., the plaintiffs and four female
companions were in front of the Memphis Police EDU precinct when a man approached them on
foot, ordered them to leave, and made an inflammatory racial slur. This man had alcohol on his
breath, was not wearing a police uniform or badge, and did not identify himself as a police
officer. Plaintiff McDonald responded, “Who the fuck are you?” but the plaintiffs’ group
nonetheless crossed the street and walked away without awaiting a response. But the man did
respond: he yelled, “I’m going to show y’all who I am,” and “blindsided” McDonald, kneeing
him in the back as another man joined in. As it turned out, the instigator was off-duty Memphis
Police Officer Marico Flake, who had been drinking alcohol with other off-duty police officers at
the EDU precinct and, therefore, knew that other (alcohol-impaired) officers were present nearby
and would likely assist him. These officers engaged in the physical assault on the plaintiffs,
shouting, “Stop resisting arrest!” while punching, kicking, and striking the plaintiffs with batons
or flashlights, causing injuries that left each plaintiff with over $7,000 in medical bills.
Officer Flake denies all of this and insists on his own, opposite version of events (e.g., he
did not make any racial slur; he did not drink any alcohol; he was wearing police uniform
clothing; his badge was visible; he did immediately identify himself as a police officer; he did
not assault anyone; McDonald was about to attack him without provocation before another

Case: 14-6258
Nos. 14-6258/6370

Document: 50-3

Filed: 02/29/2016

Page: 11

McDonald, et al. v. Flake, et al.

Page 11

officer initiated contact; and Flake was unaware that there was any alcohol present at the precinct
or that other officers had been drinking). As the district court explained—clearly, thoroughly,
and repeatedly—deciding between these two versions is a task for the jury, not for the district
court on summary judgment or for this court on appeal.
Instead, the district court properly accepted the plaintiffs’ record-supported evidence to
decide the motion as a matter of law and we do likewise, adopting for purposes of this appeal the
district court’s determination of the facts and deciding only the remaining questions of law
before us here. See Estate of Carter, 408 F.3d at 310. Specifically, since we have already
determined that the rights the plaintiffs are claiming here were clearly established at the time of
the incident, we must now decide whether Officer Flake’s conduct, on these facts, violated those
rights. We conclude that it did. On these facts, Officer Flake led a group of alcohol-impaired
officers in an attack on the unsuspecting plaintiffs, in violation of Turner, 119 F.3d at 429;
inflicted excessive force on these subdued plaintiffs during this police encounter and seizure, in
violation of Chappell, 585 F.3d at 908; and ultimately arrested these battered plaintiffs without
probable cause, in violation of Everson, 556 F.3d at 500. On this evidence, a jury could
reasonably find for the plaintiffs.
Under this analysis, the decision is obvious. We AFFIRM the district court’s denial of
Officer Flake’s motion for summary judgment on the basis of qualified immunity.
III.
The plaintiffs charged the City of Memphis with municipal liability on the basis that an
official policy, or tolerating of a custom, led to the violation of their constitutional rights. See
Doe v. Claiborne Cnty., 103 F.3d 495, 507 (6th Cir. 1996). Specifically, the plaintiffs allege that
the long-standing policy or custom of “Choir Practice” (in which police officers consume alcohol
at the precinct), for which no officer has ever been disciplined, demonstrates deliberate
indifference or failure to supervise. The district court denied summary judgment on the basis
“that there are too many questions of fact that have yet to be resolved in this case.” R.114.
The City appealed and the plaintiffs argued that we lack appellate jurisdiction. Because
this was an ordinary denial of summary judgment, not a denial of qualified immunity, even a

Case: 14-6258
Nos. 14-6258/6370

Document: 50-3

Filed: 02/29/2016

Page: 12

McDonald, et al. v. Flake, et al.

Page 12

purely legal issue is not final for purposes of appellate jurisdiction. See Harrison v. Ash, 539
F.3d 510, 521 (6th Cir. 2008). But the City urges us to decide it under the authority of our
pendent appellate jurisdiction. See Hidden Vill., LLC v. City of Lakewood, 734 F.3d 519, 524
(6th Cir. 2013).
“Pendent appellate jurisdiction may be exercised only when the immunity issues
absolutely cannot be resolved without addressing the nonappealable collateral issues.” Henricks
v. Pickaway Corr. Inst., 782 F.3d 744, 752 (6th Cir. 2015) (editorial marks omitted) (quoting
Archie v. Lanier, 95 F.3d 438, 443 (6th Cir. 1996)); Chambers v. Ohio Dep’t of Human Servs.,
145 F.3d 793, 797 (6th Cir. 1998) (emphasizing that “pendent appellate jurisdiction is not meant
to be loosely applied as a matter of discretion; rather, such jurisdiction only may be exercised
when the appealable issue at hand cannot be resolved without addressing the nonappealable
collateral issue”). Such is not the case here.
As demonstrated in the foregoing section, the appealable issue here (whether Officer
Flake’s conduct violated plaintiffs’ clearly established rights) is readily resolved without
consideration of the existence or contours of the alleged policy or custom that underlies the claim
of municipal liability.

Moreover, the City’s core argument on the merits of its appeal

demonstrates fully the independence or unrelatedness of these issues: the City insists that the
plaintiffs cannot prove municipal liability even if they prove that Officer Flake violated their
rights as alleged.
Consequently, we may not extend pendent appellate jurisdiction to this issue. See Baker
v. Union Twp., 587 F. App’x 229, 237 (6th Cir. 2014) (explaining that “there is no ‘pendent
appellate jurisdiction’ for third parties [merely] trying to piggyback on an appeal challenging a
district court’s denial of qualified immunity at the summary judgment stage”).
IV.
Finally, the plaintiffs move for sanctions, in the form of costs incurred defending these
appeals, on the basis that these appeals were knowingly frivolous and taken in bad faith. “If a
court of appeals determines that an appeal is frivolous, it may . . . award just damages and single
or double costs to the appellee.” Fed. R. App. P. 38. “An appeal is frivolous if it is obviously

Case: 14-6258
Nos. 14-6258/6370

Document: 50-3

Filed: 02/29/2016

McDonald, et al. v. Flake, et al.

Page: 13
Page 13

without merit and is prosecuted for delay, harassment, or other improper purposes.” Bridgeport
Music, Inc. v. Smith, 714 F.3d 932, 944 (6th Cir. 2013) (citation and quotation marks omitted).
As the plaintiffs point out, Officer Flake’s appeal was solely a fact-based challenge to the
plaintiffs’ evidence and the district court’s findings, which was both contrary to settled law and
in flagrant disregard of the district court’s direct admonition that Flake must accept the plaintiffs’
version of the facts in order to raise a justiciable appeal. Despite his protests in his response
filing, Flake cannot overcome this problem. His appeal was “obviously without merit.”
The City claims to base its right to appeal on pendent appellate jurisdiction but, even
acknowledging the controlling law (i.e., that the appealable issue must necessarily depend on the
outcome of the pendent issue, otherwise referred to as being “inextricably intertwined”), the City
made no such argument. In fact, the City’s argument demonstrated that the issues were not
interdependent. In its response to the motion, the City asserts that the appeals are interdependent
because we could make a fact determination that Officer Flake did not drink any alcohol (despite
the plaintiffs’ evidence and the district court’s ruling), which would then allow both defendantappellants to prevail. But that theory is untenable here. Rather, at this stage of the proceedings,
there was no reasonable claim of pendent appellate jurisdiction. This appeal was “obviously
without merit.”
The unmistakable futility of these appeals is compelling. See WSM, Inc. v. Tenn. Sales
Co., 709 F.2d 1084, 1088 (6th Cir. 1983) (“Rule 38 should doubtless be more often enforced
than ignored in the face of a frivolous appeal.”). This is even more so given the plaintiffs’
motion in the district court and the court’s resulting order, which expressly put the defendants on
notice that they must accept the plaintiffs’ version of the facts and argue only legal issues. See
Bailey v. Columbus Bar Ass’n, 25 F. App’x. 225, 229 (6th Cir. 2001). This gross futility and the
defendants’ disregard for the warning necessarily influences our view of whether the defendants
intended “delay, harassment, or other improper purposes,” Bridgeport Music, 714 F.3d at 944.
In suggesting that the true purpose was delay, the plaintiffs point out that Officer Flake
engaged in over two years of discovery before filing his motion for qualified immunity and then
filed the appeal only days before trial was scheduled to begin. The City filed its appeal after that

Case: 14-6258
Nos. 14-6258/6370

Document: 50-3

Filed: 02/29/2016

Page: 14

McDonald, et al. v. Flake, et al.

Page 14

and only after the district court had denied its motion to continue trial to a later date. The district
court itself expressed that it was “disturbed” and “troubled” by this timing, suggesting that it
suspected the defendants of improper gamesmanship. The defendants respond, correctly, that
they filed their appeals within days of the district court’s order denying their motions.
In Yates, 941 F.2d at 448, we warned that, “unfortunately,” defendants could employ
these interlocutory appeals from the denial of qualified immunity “for the sole purpose of
delaying trial,” “often to the disadvantage of the plaintiff.” Specifically, when “disappointed by
the denial of a continuance, [such defendants] may help themselves to a postponement by
lodging a notice of appeal.” Id. (citation and quotation marks omitted). By design, or merely as
a result, “[d]efendants may defeat just claims by making [the] suit unbearably expensive or
indefinitely putting off the trial.” Id. at 449 (citation and quotation marks omitted).
Here, the defendants argued the facts and evidence, in complete disregard of the law and
the district court’s warnings, thus ensuring that they had no chance of success but nonetheless
obtaining the postponement of trial that the district court had denied them, while also causing the
plaintiffs unnecessary effort and expense in responding to them. See Bailey, 25 F. App’x. at 229.
This was also a waste of judicial resources. See Bridgeport Music, 714 F.3d at 944.
Because these appeals were so clearly futile and apparently prosecuted for improper
purposes, we conclude that sanctions are warranted. See Kreps v. Pesina, 202 F.3d 268 (6th Cir.
1999). Therefore, pursuant to our authority under Federal Rule of Appellate Procedure 38, we
hereby sanction Officer Flake in the amount of $1500. We further sanction the City in the
amount of $1500. These sanctions are to offset some of the plaintiffs’ appellate attorney’s fees
and costs, to compensate the plaintiffs, in part, for defending this frivolous appeal.
V.
For the foregoing reasons, we AFFIRM the judgment of the district court denying Officer
Flake’s claim of qualified immunity. We DISMISS the City’s appeal for lack of jurisdiction.
And we GRANT the plaintiffs’ motion for sanctions—in the amount of $1500 from each
appellant payable jointly to the plaintiffs—on the basis that these defendant-appellants have filed
and pursued a knowingly frivolous appeal in bad faith, causing harm to the plaintiffs.